The Design & Construction Management Professional Reporter: September 2022

Inside This Issue:

Note from the Editor

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As summer is ending, we hope this finds you well and refreshed. We look forward to positive energy in the industry with new spending and ambitious programs underway.

In this edition of the Reporter we discuss a case where the Civilian Board of Contract Appeals awarded equitable adjustment to a GSA contractor for defective specification in an RFI, a Nevada decision holding breach of contract by an architect under state law is not preempted by the ADA,

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The Design & Construction Management Professional Reporter: Winter 2021/2022

Inside This Issue:

“Should Geotechnical Baseline Reports be the Universal and Exclusive Contractual Basis for Subsurface Conditions Risk Allocation?”
By: David J. Hatem, PC

Massachusetts Appeals Court Holds MEP Contractor’s Use of “Individual Expertise” to Support Hot Water Tank Installation is Protected by the Statute of Repose

Retail Tenants Continue To Seek Relief From Leases Due To Covid Induced Business Interruptions, While Results Remain Favorable For Landlords
By: Stephen F. Willig

To read a PDF version of the Winter 2021/2022 issue,

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The Design & Construction Management Professional Reporter: December 2020

Inside This Issue:
“Rethinking and Recalibrating Design-Build”
By: David J. Hatem, PC
“Texas Court of Appeals Affirms Strict Compliance with Certificate of Merit Statute.”
By: Andrew S. Hassey
To read our December 2020 issue, please click here.

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The Design & Construction Management Professional Reporter: July 2020

INSIDE THIS ISSUE:

“Florida Court Rules Architects Can Be Liable To Contractors For Negligence”
By: Michael Robertson

“Massachusetts High Court Rules that Consent to Settle Provisions in Professional Liability Policies are Enforceable”
By: Jon C. Cowen, Esq.

“District Court of Massachusetts Judge Certifies Question Concerning Statute of Repose Applicability to SJC”

“Vigor Works Decision Demonstrates Certain Risks for Designers and Contractors in Design-Build Arrangements”

To read our most recent issue,

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The Design & Construction Management Professional Reporter: July 2019

Inside This Issue:
“Changing Professional Liability Practice Insurers: Perils for Consulting Engineers Involved in Design-Build Projects”
By: David J. Hatem, PC
“The Massachusetts Supreme Judicial Court Reaffirms Ruling that the Statute of Repose Permanently Bars All Claims”
By: Gwen P. Weisberg
To read our July 2019 issue, please click here.

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The Design & Construction Management Professional Reporter: May 2019

Inside This Issue:
“Protection Under A ‘No Damages For Delay’ Clause In Contract Between Contractor and City May Not Be Extended To Third-Party Architecture Firm”
“Designers Utilizing Drones in Development Require Plans for Regulatory Compliance and Risk Management”
“Florida Appeals Court Finds Consequential Damages Waiver Provision Valid in Design Contract”
To read our May 2019 issue, please click here.

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The Design & Construction Management Professional Reporter: Summer 2018

Inside This Issue:
“A Project Manager May Owe a Duty of Care to a General Contractor Without Privity of Contract”
“No One Would Buy the House: Tennessee Court Holds That Defendant Has Burden of Demonstrating Cost of Repairs to Damaged Real Property in Certain Circumstances”
“Practice Tips for Engineers Facing Ethical Dilemnas”
“U.S. District Court Finds “Faulty Workmanship” Exclusion in Professional Liability Policy Precludes Coverage for $894,671.97 Award”
“The Spearin Doctrine, in Relation to Design-Build Projects,

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The Design & Construction Management Professional Reporter: April 2018

Inside this Issue:
Colorado Court of Appeals Rules On Implementation Of Settlement Setoff
Federal District Court Dismisses Cross-Summary Judgment Motions in Copyright Action
Massachusetts Appeals Court Reverses Dismissal of Complaint Under Anti-Slapp Statute
Penzel: Missouri Court of Appeals Applies Spearin and Modified Total Cost Damages in Two Instances of First Impression
Recent Case Highlight: Third Party Claims
By: Brian C. Newberry
To read our April issue, please click here.

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The Design & Construction Management Professional Reporter: December 2017

Inside this Issue:
Design-Build & Public-Private Partnerships: Managing Cost Overrun Risk for Project Owners On Infrastructure Megaprojects
By: John Reilly P.E., C.P.Eng. and David J. Hatem, PC, Esq.
Abstract
Cost overrun risk for owners has been a significant concern, prompting development of a number of best practices to more realistically identify and quantify risks that impact cost and schedule on megaprojects and to prudently allocate those risks among project participants.
Design-build (DB) and public-private partnership (P3) projects present owners with the opportunity to transfer substantial design and construction risks to private sector participants.

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The Design & Construction Management Professional Reporter: June 2017

Inside this issue:

Massachusetts Federal District Court Applies Fed. R. Civ. P. 9(b) Heightened Standard of Pleading to Negligent Misrepresentation Claim

By Molly E. Manson, Esq.

Good Neighbor Design Practices: How Prudent Design Decision-Making Can Increase Project Success and Limit Professional Liability Exposure

By David J. Hatem, PC and Molly E. Manson, Esq.

Construction Control Affidavits and the Importance of Defining Design Professional Scope of Work

By Bryan R. Wieland, Esq.

Recent Case Highlights Important Business Lesson

By Brian C. Newberry, Esq.

Massachusetts Appeals Court Affirms Dismissal of Complaint Against Design Professionals Based Upon the Three-Year Statute of Limitations

By Patricia B. Gary, Esq.

Divergent Outcomes in Massachusetts Cases Demonstrate the Effect of a Comprehensive Bar Against Damages in a Subcontract

By Jennifer A. Lincoln, Esq.

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The Design & Construction Management Professional Reporter: March 2017

Inside this issue:

Acceptance of Initial Design Documents in Divisible Design Contract Triggers Accrual of a Breach of Contract Action Against Design Professional

By Molly E. Manson, Esq.

Limitation of Liability Provision May Not Preclude Recovery Under Chapter 93A if Claim is Based Upon Fraudulent Conduct

By Patricia B. Gary, Esq.

New Hampshire Supreme Court Rules Municipalities Have Limited Time to Bring Lawsuits Against Design Professionals for Municipal Contract Breaches

By James L. Soucy, Esq.

Considering the Costs of Contract Arbitration Clauses

By Brian C. Newberry, Esq.

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The Design & Construction Management Professional Reporter: December 2016

Inside this issue:

Diverse and Bifurcated Design Roles: Distinguishing Design Responsibility and Design Risk Allocation

By David J. Hatem, PC

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The Design and Construction Management Professional Reporter: September 2016

Inside this issue:

Supreme Court Rules That Grounds for Judicial Review of an Arbitration Award Cannot be Altered by a Contract

By Kristen R. Ragosta, Esq.

Colorado Supreme Court Finds Tort Claims Not Barred by the Economic Loss Rule if Supported by an Independent Duty

By Lauren E. King, Esq.

New York Appellate Court Enforces the Economic Loss Doctrine and Bars Contribution Claim

By Nicholas G. MacInnis, Esq.

Resentful Homeowner Lacks Reliance and Proper Timing

By Gregory S. Paonessa, Esq.

Defense Verdict Highlights Importance of Defining Beneficiaries in Contracts

By Brian C. Newberry, Esq.

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The Design and Construction Management Professional Reporter: April 2016

Inside this issue:

Mississippi Appeals Court Uses Seven Factors to Determine Whether Supervisory Powers Extend Beyond Contract Provisions Contained in A/E Contract

By Kristin A. Hartman, Esq.

General Contractor’s Case Against Design Professional is not Barred by the Theory of Claim Preclusion

By Daniel Lagosh, Jr., Esq.

Maryland Court of Special Appeals Upholds Dismissal in Duty of Care Case Based on Purely Economic Losses

By Lucas M. Blackadar, Esq.

Contractor’s Delay Claim Against the Architect Survives Motion to Dismiss in Virginia

By Ryan P. Moore, Esq.

Expecting the Unexpected: Using Standard Construction Contingency to Establish Minimum Design Standard of Care

By Kristen R. Ragosta, Esq.

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The Design and Construction Management Professional Reporter: January 2016

Inside this issue:

Owners, Take Heart – Amendment to Texas Condominium Law Gives Unit Owners a Voice in Construction Litigation

By Lucas M. Blackadar, Esq.

Risk Associated With Differing Site Conditions Can Be Expressly Assumed

By Amanda E. Mathieu, Esq.

Nullum Tempus Occurrit Regi? No, But the King Still Has a Long Time

By Lucas M. Blackadar, Esq. and Jonathan A. Barnes, Esq.

The Importance of Carefully Reviewing Contract Terms Including Those Incorporated by Reference

By James L. Soucy, Esq.

A Resident Engineer Providing Inspection Services Owes No Duty to a Subcontractor

By James M. Boyce, Esq.

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The Design and Construction Management Professional Reporter: September 2015

Inside this issue:

New Jersey’s Joint Tortfeasor Law Warrants Strict Appliation in the Courts

By Lauren M. Ippolito, Esq.

Sovereign Immunity Still (Mostly) for Sovereigns

By Lucas M. Blackadar, Esq.

New Hampshire Supreme Court Enforces the Statute of Repose

By Michael E. Coghlan, Esq.

Project Management Firm Has No Implied Duty to Ensure the Safety of Subcontractor’s Employees

By Gregory S. Paonessa, Esq.

Expert Testimony and Proof of an Independent Legal Duty Are Required To Establish a Design Professional’s Liability

By Lauren M. Ippolito, Esq.

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The Design and Construction Management Professional Reporter: May 2015

Inside this issue:

Is Perfection Possible? Managing Uncertainty and Expectations in Building Design and Construction.

By Sue E. Yoakum, Esq., AIA

Variations on Enforcement of the Economic Loss Rule

By Lindsey D. Smith, Esq.

Massachusetts Courts Deny Contractor’s Differing Site Condition Claim Based on Disclaimer Language in the Contract Documents

By Joseph M. Gesker, Jr., Esq.

Florida Defines the Zone of Foreseeable Risk

By Lindsey D. Smith, Esq.

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Design and Construction Management Professional Reporter: September 2014

Inside this issue:

Only Firms Registered to do Business in Nevada May Recover Fees

By Craig MacLellan, Esq.

Public-Private Partnership and Design-Build Subsurface Projects: Who is Actually Responsible for Design and Subsurface Conditions Risk? A Call for Guidelines

By David J. Hatem, PC

Arbitration Finding that Owner Deviated from Architect’s Design Precluded Owner from Suing Architect in Subsequent Litigation

By Pamela C. Rutkowski, Esq.

Revised Kansas Professional Statute Creates Ambiguity in Engineering Practice

By Peter M. Vetere, Esq. and Jesse R. Taylor, Esq.

Massachusetts Superior Court Draws Distinction between Construction Manager at Risk Contracts and Traditional Design-Bid-Build Contracts in Allocating Project Risk and Responsibility for Design Adequacy and Cost Overruns

By Kristin A. Hartman, Esq.

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Design and Construction Management Professional Reporter: April 2014

Inside this issue:

Massachusetts Superior Court Holds Contractor Liable for Loss of Subcontractor Productivity

By Justin Twigg

Public-Private Partnerships and Design-Build Subsurface Projects: Consulting Engineer Professional Liability Risk

By David J. Hatem, PC

New Jersey Supreme Court Requires Written Agreement to Enforce Settlement Reached Through Mediation

By Kristin A. Hartman, Esq.

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Design and Construction Management Professional Reporter: December 2013

Inside this issue:

Connecticut Supreme Court Rules That Damages for Faulty Workmanship May Be Encompassed Within a Commercial General Liability Insurance Policy

By Kristin A. Hartman, Esq.

Florida Aborogates Individual Liability For Design Professionals

By Craig J. MacLellan, Esq.

Economic Rule Bars Claims for Negligent Misrepresentation Under Nevada Law

By Kristen R. Ragosta, Esq.

Massachusetts Superior Court Holds Architect Has No Liability to Guarantee Jobsite Safety

By Pamela C. Selvarajah, Esq.

New Jersey Court Finds Contractor’s Suit Against Architecture Firm Not Barred by Economic Loss Doctrine; Contractor’s Failure to File Affidavits of Merit Precludes only Professional Standard of Care Claims

By Rebecca McWilliams, AIA, Esq.

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